Friday, March 22, 2013

The Justice System

Dr M N Buch, Dean,

Centre for Governance and Political Studies

The justice system in India is passing through an extremely difficult
period, for which there are a number of reasons. Let us start with the
basics, that is, the separation of powers. In this a very special
position is given to the Judiciary which makes it totally independent of
the Executive. This is most praiseworthy, but it would be futile to
deny that the system is under stress. As the Executive fails to perform
its functions of governing, as people develop a feeling that they
cannot expect fairness, impartiality and efficiency from the Executive,
recourse to the courts has increased substantially and in matters in
which the Executive should have taken a decision the Judiciary is being
forced to intervene so that people receive their due, especially in
terms of delivery of services. Because it is impossible to maintain an
absolutely fine-tuned balance when one constituent of the State is
forced to order another, equal constituent to act in a particular way
or desist from acting in another way, there are bound to be complaints
that the Judiciary is intervening in executive matters. Looked at from
the citizens’ point of view this is just fine because he is interested
in his legitimate work being done. That, however, is not how the
Executive views it. There have also been instances of clashes between
the Judiciary and the Legislature, but fortunately the stand-off has
never reached the point of irreversible crisis. However, the Executive
must begin to govern and its lowliest functionary must being to do his
duty as mandated by law, rules or executive order. If that happens
people will find it unnecessary go to the Judiciary for remedy and
courts can then go back to their main function of deciding issues
between adversaries.

One of the areas of conflict is in the appointment of judges of the
Supreme Court and the High Courts. Article 124 of the Constitution
states how a judge of the Supreme Court may be appointed. Article 217
provides for the appointment of High Court judges. The operative part of
Article 124 (2) reads, “Every judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal after
consultation with such of the judges of the Supreme Court and of the
High Courts in States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty-five :
Provided that in the case of appointment of a judge other than the
Chief Justice, the Chief Justice of India shall always be consulted”.
Under Article 217 for the appointment of a judge of a High Court the
President is the appointing authority and he is required to decide on
such appointment in consultation with the Chief Justice of India,
Governor of the State and, in the case of appointment of a judge other
than the Chief Justice, the Chief Justice of the High Court concerned”.
The Supreme Court has ruled that consultation with the Chief Justice of
India establishes the primacy of the Chief Justice in determining who
shall or shall not be appointed a judge of the Supreme Court or a High
Court. The Supreme Court has further ordered that it is a collegium of
judges, to be selected by the Chief Justice which will help the Chief
Justice to determine what advice should be rendered to the President
regarding the appointment of a judge.

I have serious objection to the concept of a collegium of judges
which limits the power of the President to consult such judges of the
Supreme Court and the High Courts as he deems necessary, which is what
Article 124 (2) states. I do not think that the Supreme Court can thus
limit the authority of the President regarding consultation which vests
in him through the Constitution, though the Chief Justice of India would
be free to set up a collegium to advise him on the recommendations to
be made on consultation. The question still remains about how a conflict
will be resolved where the collegium advises the Chief Justice in a
particular way and the judges whom the President consults give some
other advice. The third player would be the Council of Ministers, whom
the President is bound to consult before taking a decision because under
the Constitution he is bound by the advice of the Council. This would
apply to the Governor of a State also who, when consulted by the
President about appointment of a High Court judge, would naturally have
to abide by the advice given to him by his Council. In other words, the
present provisions of the Constitution and their interpretation by the
Supreme Court do leave open the gates of disagreement and even
conflict because whereas the President may not appoint a judge whom the
Chief Justice of India and the collegium have found unfit, he need
not appoint a person recommended by the Chief Justice. In fact many
vacancies in the High Courts and the Supreme Court have not been filled
on account of such conflict.

Government has been trying to set up a National Judicial Commission,
to be headed by the Chief Justice of India and with adequate
representation of the Supreme Court and High Courts. The Commission, as
envisaged, would have the Law Minister, the Leader of the Opposition of
one of the two Houses of Parliament and an eminent jurist nominated by
the President as members. Justice J.S. Verma, Justice V.N. Khare,
Justice V.R. Krishna Iyer and Justice M.N. Venkatachalliah are all
opposed to the collegium system. Perhaps the issue could be resolved if
the proposed National Judicial Commission could have a majority of
judicial members, with the Chief Justice having a veto power and if the
eminent jurist is nominated by the Chief Justice of India rather than
the President. Suitable constitutional and legal arrangement could be
made for the advice of the National Judicial Commission being final,
with neither the President nor the Prime Minister being authorised to
overrule it. Without bringing the Executive into the process for the
appointment of judges of the Supreme Court and High Courts, such an
arrangement would widen the scope of the required consultation with the
Chief Justice and by bringing the government, the opposition and the Bar
on board through an eminent jurist, the system of appointment of judges
could be made more broad based and more credible.

An independent judiciary is a sine qua non of a true democracy.
However, the only system of governance in which authority does not go
hand in hand with accountability is a dictatorship of the type
established by Hitler or Stalin. This means that the more independent
the judiciary the more should it be accountable. Accountability which
does not lead to penalty for failure to discharge accountability
satisfactorily is no accountability. Under Article 227 courts and
tribunals located within the jurisdiction of a High Court work under the
superintendence of the High Court and in exercise of the power of
superintendence the High Court can call the court or tribunal to
account. Under Chapter 6 of Part VI of the Constitution the District
and Sessions Courts and the Courts of Magistrates and Civil Judges are
termed as subordinate courts and under Article 235 control over
subordinate courts vests fully in the High Courts. The Constitution,
therefore, provides for High Courts to decide how subordinate courts
will function, to prescribe measures to ensure accountability and to
punish for failure to render account, in terms of finance, efficiency,
judicial competence, etc. But what about the High Courts and the
Supreme Court? Their judicial pronouncements are open to appeal,
revision and review, but administrative and personal conduct are not
subject to the superintendence, supervision or control of any judicial
authority. If a judge does little or no work, is not regular in
attendance, delays judicial pronouncements, does not promote efficient
judicial process in his own court or in subordinate courts the maximum
that can happen is that under Article 222, on the advice of the Chief
Justice of India, the President may transfer a judge from one High Court
to another. If there is serious misconduct the procedure laid down in
Article 124 (4), it would be applicable. For High Court judges Article
218 would apply, which means that a Supreme Court or High Court judge
can only be removed through impeachment proceedings. There is no other
penalty prescribed, but as the Justice Ramaswamy case has proved, if
equations in Parliament are such that the necessary majority cannot be
mustered, a judge found guilty of misconduct by a tribunal constituted
under Article 124 (4 and (5) the judge may still escape removal. Carried
one step further, if a judge is found guilty in a criminal trial,
convicted and given a jail sentence, the impeachment proceedings can
still fail and the convict would continue to be a judge of a High Court
or the Supreme Court. This may happen in the case of a lady judge of the
Punjab and Haryana High Court who has been accused of taking a bribe.
Government, Parliament and the Supreme Court must realise that what
could never be dreamt of when the Constitution was drafted, that is, a
judge of a High Court or Supreme Court committing a criminal
misdemeanor, can no longer be ignored and, therefore, we must have a
constitutional provision whereby in such cases, while taking great care
to ensure that the independence of the judiciary is not thereby
compromised, such a judge can be made to demit office.

The major problem with our subordinate courts from District and
Sessions Courts down to a Magistrate First Class cum Civil Judge Class
Two is that cases drag on for years. Formerly civil litigations were
considered to be very lengthy and time consuming, but now unfortunately
even the criminal justice system has become subject to inordinate delay.
I have perhaps quoted this case else where, but it bears repetition.
In Mach 1983 shortly before I left the Service we trapped a lady who was
trying to bribe a Deputy Secretary. He had already reported that such
an attempt was being made and we arranged a trap, catching the lady red
handed. My evidence was proforma, but necessary because the bribe was
being offered for expeditious processing of a case in which the accused
person’s application to me had been forwarded by me to the Deputy
Secretary for examination. It took eleven years for my evidence to be
recorded because every time I went for a hearing the accused, by
absence, by subterfuge, by downright lies was able to obtain
adjournments. The case was finally decided fifteen years after the
event. What is the deterrent effect of such proceedings? How can
witnesses be expected to remember an event which happened several years
earlier and give testimony which could withstand cross examination, the
purpose of which is to discredit the witness? This was a simple case
with only three or four witnesses, but imagine what happens in a serious
case in which a heinous offence has been committed and there are a
large number of witnesses. No wonder we have such a miserable record of
convictions.

I have been trying to understand why cases are delayed. I am not
even attempting to look at civil cases because that will require several
volumes. In a criminal trial the first delay occurs at the stage of
investigation. The available clues may be either so few as to be
almost nonexistent, witnesses may not be available, the forensic tests
may be inconclusive, the investigating officer may be overburdened and
can give only limited time to a particular offence, the accused and the
witnesses or even the complainant may come to some compromise or there
could be sheer inefficiency. This is where superior police officers
have a major role to play to ensure that investigation is consistent,
sustained and done with intelligence. Forensic and other support must be
made available freely to the investigating team. The legal niceties of
investigation must also be taken care of. The submission of the challan
must be accompanied by full documentation so that the charge-sheet is
complete in itself. This has to be followed up by proper representation
of the prosecution in court, with the public prosecutor and his
assistants applying due diligence to the case. If the public prosecutor
is wide awake and proactive many of the delays in court can be avoided.

One reason for delay is in the serving of process. The court
moharrir, who would generally be from the police, or the reader of the
magistrate or judge, would be responsible for issue of process which, in
criminal cases, would generally be served by the police. The
arrangement is not satisfactory and most courts report that service of
process is tardy and very often summons and warrants are just not served
in collusion with the accused or the witnesses. Surely, with modern
means of communications, with speed post, courier service, SMS texting
and the internet the High Courts can work out a system whereby service
of process becomes efficient and cannot be used as an excuse for delay
in court proceedings. Our courts cannot function in the eighteenth
century when the twenty-first century gives such exciting and innovative
means of communication, or are they waiting for that happy day when
science evolves a means of apparatus-less communication of thought
process whereby what the judge thinks is communicated to the witness or
accused by a para-psychic process? Coming to the trial proper, defence
counsels are prone to pleading for adjournments, especially in those
cases where the defence case is weak. Adjournments must be avoided
because whereas an adjournment which is unavoidable is given, in most
cases adjournment is denied. It is for learned counsel to adjust their
cause list in such a way that appearance in one court cannot be offered
as an excuse for nonappearance in another court. There is no reason for a
judge to give an adjournment only for the sake of convenience of
counsel. Every defence counsel is an officer of the court and it is his
duty to assist the court in speedy disposal of a case. A counsel who
acts otherwise fails in his duty and should be treated as such.

I have talked to a number of judges and magistrates about why they
are not strict in the matter of adjournment. Under Article 21 of the
Constitution every person, including one accused of a heinous offence,
is still entitled to be tried by due process before being deprived of
his life or personal liberty. Under Article 22 a person who is arrested
and detained in custody has the right to be informed of the grounds for
arrest, he has the right to consult and be defended by a legal
practitioner and he cannot be detained in police custody beyond
twenty-four hours of arrest without the orders of a magistrate. Under
Article 39 (A) every citizen is entitled to equal justice. This is
enforceable by the provisions of Articles 139 and 226 which confer writ
jurisdiction on the Supreme Court and the High Courts. The Code of
Criminal Procedure prescribes the process of trial in criminal cases.
Chapters XVI and XIX of Cr.P.C. state how proceedings shall be conducted
before a Magistrate and Chapter XVIII does the same for trial before a
court of session. Under sections 231 and 233 Cr.P.C. an accused person
has the right to cross examine the prosecution witnesses and to enter
upon his own defence and adduce evidence in this behalf. Suppose an
accused person deliberately delays the taking of evidence for the
prosecution and indefinitely defers his own defence. Should the court
indulge him and go on giving adjournments indefinitely, as happened in
the bribery case to which I have earlier referred? Under Indian law a
person is deemed to be innocent till proved guilty but there is no
provision of law which says that an accused and his counsel can go on
creating obstruction so that the trial is indefinitely delayed. In
other words, an opportunity, a manifestly fair opportunity, must be
given to the accused on trial to present his case, but when the accused
tries to indefinitely delay the matter the court need not succumb. Under
section 309 Cr.P.C. the provision is, “In every enquiry or trial the
proceedings shall be held as expeditiously as possible and, in
particular, when the examination of witnesses has once begun, the same
shall be continued from day-to-day until all the witnesses in attendance
have been examined, unless the court finds the adjournment of the same
beyond the following day to be necessary for reasons to be recorded”.
The proviso to this section states that any trial relating to an offence
under section 376 and 376(D) of IPC (sexual offence amounting to rape)
must be completed within a period of two months from the date of
commencement of the examination of witnesses. The scheme of Cr.P.C. is
very clear, the accused is entitled to a fair trial, but he is not
thereby entitled to indefinite delay.

I have spoken to some judges about why they so readily give
adjournments. Even the most conscientious of them state that if they do
not give an adjournment there are many defence lawyers who indulge in
making complaints against the judge and, by and large, the High Courts
tend to be more sympathetic to defence counsel than to their own judges.
Rather than face such complaints many judges take the easy way out and
adjourn the case. One of the things which many judges have forgotten
is that bail is also a form of custody in which instead of physically
holding the accused the court permits enlargement on bail, whereby
surety of appearance is substituted for physical custody. If the accused
person deliberately delays proceedings by non appearance or such other
tactics it would be legitimate for the court to hold the person in
physical custody and to proceed with the case on a day-to-day basis.
The Supreme Court and the High Courts must try and move the courts in
this direction. Greater adoption of evidence through video conferencing
and other means of electronic recording of evidence would also help in
expediting cases.

There are some recent developments which are causing me worry. The
first is that recent rape cases have certainly shaken the nation, with
the Chief Justice of India going as far as to say that he would have
personally liked to participate in the public protest. Perhaps he was
ill advised to make this statement because in a way he thus pre judges
even the specific case under mention, which means that no trial court in
India would hereafter readily acquit a person in such matters unless no
case at all is made out and this could lead to mistrial of rape cases
and denial of justice to the accused persons. We have seen a whole
spate of very speedy trials, some lasting only for ten days, in which
the accused has been sentenced to death. Murder, whether or not
accompanied by rape, is the ultimate crime because it irreversibly
deprives a person of his life. The accused also faces possible
judicial termination of his life at the end of the trial and, therefore,
courts have to be extra careful to ensure that the accused has full
and fair opportunity to represent his or her case and that there is no
miscarriage of justice through haste. The Supreme Court and the High
Courts for years have ruled that there should be extreme caution in
awarding the death penalty and that, too, only in the rarest of rare
cases. In sharp contrast in at least half a dozen cases in the last two
or three months rapists have been awarded the death penalty after
trials which smack of the summary. The judiciary cannot swing between
two extremes because our politicians, civil servants and the so-called
civil society are already doing this. Certainly the judiciary should
enforce the law with great strictness and there should be no misplaced
and pseudo philanthropic attitude towards crime. At the time same
justice has to be done because two principles of Anglo Saxon
Jurisprudence that we follow are :- (1) An accused is presumed to be
innocent till proved guilty, with the burden of proof of guilt resting
on the prosecution. (2) It is better that a hundred guilty people go
free rather than that one innocent person be punished. It is for the
judiciary to ensure that the balance is maintained, the innocent are
protected and at the same time the guilty are brought to justice in the
shortest possible time.